Friday 8 February 2019

Launching Judicial Reviews for Strategic Infrastructure Developments

Applications for consent to launch a judicial review must be made to the High Court. 

On 2 February 2018, the President of the High Court issued a Practice Direction concerning judicial review applications relating to SIDs (HC74 – ‘Judicial Review Applications in respect of Strategic Infrastructure Developments’). According to the Practice Direction:

1. As and from Monday, 26th February, 2018 all applications for leave to apply for judicial review in respect of permissions or decisions concerning strategic infrastructure developments must be made to Mr. Justice Barniville. They may not be made to any other judge.

2. Mr. Justice Barniville will sit at 10.30am each Thursday during term to hear such applications.

3. The applicant for such leave must lodge all the necessary papers in support of the application in a bound, indexed and paginated form with the Central Office marked “Strategic Infrastructure Application” not later than 4.00pm on the preceding Monday.

4. Should leave be granted to the applicant to apply for judicial review Mr. Justice Barniville will give all necessary ancillary directions with a view to ensuring a fair just and expeditious hearing of the matter.

5. For the purposes of this Practice Direction a strategic infrastructure development is development in respect of which a direct application is made for development consent to An Bord Pleanála in accordance with the provisions of the Planning and Development Act 2000 as amended.

If you have any questions, please give me a call on 087-2615871.

Wicklow seafront's old brown gym building to become residential

An Bord Pleanála has overturned a decision by Wicklow County Council refusing permission to change the usage of a building on Wicklow's sea front from a gym to residential. Last year Maurice Sheehy applied to Wicklow County council for a change of use of a building previously used as a gym to residential building consisting of four apartments at ground floor level with private terracing, with unchanged plans granted to two apartments with balconies and changes to roof profile at first floor level, alterations to external facades including windows, doors, eternal wall rendering and associated works. However, the local authority planning section refused permission on the grounds that the development was considered contrary to the harbour strategy in place as part of the Wicklow town and Rathnew Development Plan 2013-2019 and was also considered contrary to the Town Centre zoning objective.  An appeal was lodged with An Bord Pleanála, who back in August of 2017 gave permission for a change of use at the same premises from gym to a mixed development consisting of licensed restaurant/café, beach shop with take-away facility, and function room, all at ground floor level, and two one-bedroom apartments at first floor level, and alterations to external facades.

Read the full article @ The Wicklow People

The Board's decision and Inspector's Report can be viewed here.

The Board stated in making the decision:

"Having regard to the Town Centre zoning objective for the area, the existing pattern of development in the vicinity and recent planning history relating to the site, it is considered that, subject to compliance with the conditions set out below, the proposed development would not contravene the provisions of the Wicklow Town – Rathnew Development Plan 2013-2019, would be compatible with the existing pattern of development in the vicinity and would be in accordance with the proper planning and sustainable development of the area".

€8m Avondale upgrade

Some €8 million will be invested into the redevelopment of Avondale House and Forest Park to turn it into a state-of-the-art visitor destination. Coillte, in association with Fáilte Ireland, made the announcement on Monday. The redevelopment project is titled 'A Place for Visionaries' and will consist of interactive education technologies designed to promote learning, new walkway trails comprising of subterranean pathways and tunnels and an elevated timber lattice walkway 460m in length to be erected overlooking the forest canopy and Avonmore River valley. The plans also include a state-of-the-art visitor centre, restaurant and café. Avondale, once the home of Charles Stewart Parnell, is now owned by Coillte and is considered the birthplace of Irish forestry.
Read the full article @ The Wicklow People

Wicklow County Council v Beattie [2019] IEHC 18

I had a call this morning asking about the final judgement in this case. Please see the judgement below.

Wicklow County Council v Beattie [2019] IEHC 18
JUDGMENT of Mr. Justice Noonan delivered on the 15th day of January, 2019

1. In this application, the applicant ("the Council") seeks an order pursuant to s. 160 of the Planning and Development Act 2000, as amended, compelling the respondent ("Mr. Beattie") to comply with certain conditions attached to planning permission 07/1080 which relates to the lands comprised in Folio 5759F County Wicklow.

2. The lands in question are part of the Beattie farm situated at Tinode, Kilbride, Blessington, County Wicklow. The farm has been in the possession of the Beattie family since approximately 1912. The farm in total contains 73.9 hectares of which 20.8 are the subject matter of the relevant planning application. Access to the farm is gained via an entrance off the N81 which is the main Tallaght to Blessington Road. This entrance has been in existence for many decades and certainly prior to 1st October, 1964.

3. In 2006, Mr. Beattie applied to the Council for planning permission for a new dwelling house on the land. There was then, and still is, no dwelling house on the land. On 26th April, 2007, planning permission reference no. 06/5174 was granted to Mr. Beattie for the development of a two storey house with a new entrance to the site and a new wastewater treatment plant. A number of the conditions attached to this planning permission related to the new entrance. Condition 5 required 120 metre sight lines, condition 6 related to the surface material of the new entrance and condition 8 provided that surface water runoff from, inter alia , the entrance, should be collected on site and not permitted to flow onto the public roadway.

4. Planning permission 06/5174 was subject to the normal five-year lifespan so that it would, if not implemented, expire on 26th April, 2012. Although it was Mr. Beattie's intention to construct the house, events overtook that plan in the shape of the economic collapse and thereafter he was no longer financially in a position to commence the construction. The entrance provided for by the 06/5174 permission was onto the R759 rural road which also bounded the Beattie farm but importantly carries a lower volume of traffic than the N81. The Council previously refused to grant Mr. Beattie permission for a development that utilised the existing N81 entrance on traffic hazard grounds.

5. The architect that represented Mr. Beattie in his various planning applications was John M. Taylor of Freyer and Taylor Architects, 39 North Avenue, Mount Merrion, County Dublin. Mr. Taylor made a further planning application on Mr. Beattie's behalf in 2007 for retention of certain farm buildings and construction of new ones. This application, bearing reference 07/1080, was granted by the Council on 28th March, 2008, for retention of:- 

"453 sq.m agricultural embryo storage facility with associated stores, office and farm workshop 675 sq.m wintering cattle facility, a new 357 sq.m feed store, new Envirocare wastewater treatment plant with percolation area, all with access from the R759 road at the Beattie farm, Tinode, Kilbride." 

6. As can be seen from the foregoing, the terms of the permission appear to provide for retention of two structures being the embryo storage facility and the wintering cattle facility allied to the erection of a new feed store and wastewater treatment plant. The granting of permission was subject to eighteen conditions but it is with conditions 1, 2, 3, 13, 14, 15, 16 and 17 that this application is concerned. In summary, these conditions provided:-

1. Permission refers to the development as described in the lodged documents;

2. Mr. Beattie should lodge the sum of €2,500 as security for compliance;

3. Mr. Beattie should lodge the sum of €2,000 as security for tree planting;

13. As this is the central issue in the case, I will quote it in full:- "Before the new entrance is brought into use, the existing entrance (off the N81) shall be permanently and effectively closed off by the erection of a boundary matching the existing boundary in height, design, construction and finish, unless otherwise agreed in writing with the planning authority";

14. 120m sight lines should be provided as per the layout plan;

15. Proposals for landscaping and tree planting should be submitted within three months;

16. Tree planting should be carried out during the first planting season;

17. The wastewater treatment plant should comply with certain standards and evidence of that should be submitted to the Council on completion.

7. The planning application was submitted with a covering letter from Mr. Taylor dated 17th May, 2007. In it, he referred to the fact that the application related to 20.8 hectares of the total farm area of 73.9 hectares and that the relevant portion contained the embryo unit to be retained as well as a then proposed winter feeding facility and a new house for Mr. Beattie. In the first page of the letter, Mr. Taylor referred to the fact that permission for this house had been granted on foot of 06/5174 but not yet constructed. On p. 2 of the letter, Mr. Taylor said the following:-

"It is proposed that there will be a shared entrance/exit for the house and the proposed wintering facility from the R759. See enclosed plans. It should be noted that permission has already been granted for an entrance at this location to serve the proposed new house. An application was previously made for this development but was refused on the grounds of access. It was proposed at that time to access the facility from the N81. This new application proposed an alternative means of access to the proposed facility."

8. Although in the course of the hearing of the appeal before me, counsel on behalf of the Council indicated that enforcement of all the above conditions was being sought, it is clear that the primary concern of the Council is with the existing entrance onto the N81, which has not been closed, and the corresponding fact that the entrance onto the R759 has not been constructed.

9. In 2011, with the expiry of the planning permission 06/5174 for the dwelling house fast approaching, Mr. Beattie applied for an extension to that permission. This was refused by the Council for one reason, namely that there was a significant change in the development objectives in the development plan since the date of the original permission such that the development would no longer be consistent with the proper planning and sustainable development of the area. Accordingly, the Council was precluded from extending the permission by virtue of s. 42(1)(a)(ii)(II) of the Planning and Development Act 2000, as amended.

10. What this reason in fact refers to is the intention of the roads authority to construct a new link road over part of the Beattie farm which would in effect destroy at least part of the development that would otherwise have been authorised under permission 06/5174.

11. One of the central issues in this case is whether the entrance onto the R759 was authorised under permission 06/5174 or alternatively, 07/1080. The Council argues that permission 07/1080 clearly on its face provides for access for the retained and new developments from the R759 and the failure to construct the new entrance means that Mr. Beattie is in breach of condition 13.

12. Mr. Beattie, on the other hand, contends that the new entrance to the R759 was neither applied for nor granted by permission 07/1080, but was in fact both applied for and granted by permission 06/5174 which has now expired and cannot therefore be implemented, the Council having refused an extension. Mr. Beattie says that condition 13 could only ever apply if and when the new entrance was constructed and as that cannot now happen, condition 13 can never be complied with and is accordingly unenforceable.

13. The Council counter this with the argument that the plans submitted by Mr. Taylor in respect of application 07/1080 clearly showed the new entrance and the development must be carried out in accordance with those plans and particulars. In response, Mr. Beattie says that it was of course appropriate and necessary to show what had already been granted on foot of permission 06/5174 when applying for the new permission. He argues that the plans submitted in support of application 07/1080 not only showed the new entrance but also the new house but it could not seriously be suggested that permission for the house was re-granted by 07/1080.

14. The touchstone in interpreting grants of planning permission is to be found in the unanimous judgment of the Supreme Court delivered by McCarthy J. in X.J.S. Investments Limited [1986] I.R.750 where he said (at 756):-

"Certain principles may be stated in respect of the true construction of planning documents:—

(a) To state the obvious, they are not Acts of the Oireachtas or subordinate legislation emanating from skilled draftsmen and inviting the accepted canons of construction applicable to such material.

(b) They are to be construed in their ordinary meaning as it would be understood by members of the public, without legal training as well as by developers and their agents, unless such documents, read as a whole, necessarily indicate some other meaning…" 

15. What the court therefore is concerned with in determining the true meaning of planning documents is what an ordinary member of the public would understand them to mean. Such meaning cannot be derived by reference to facts known only to the parties to the application but to such facts as are readily discernible from all of the planning documents that are available to the public when read as a whole. Those documents include of course not only the design drawings and plans but any correspondence on the planning file that is available for the public to peruse.

16. In the present case, such correspondence clearly includes Mr. Taylor's letter of 17th May, 2007. That letter includes a reference to the previous permission 06/5174 in respect of the dwelling house. Such a reference is also to be found in the terms of the pro forma planning application itself. Importantly however, it would be clear to any member of the public reading the passage in Mr. Taylor's letter which I have quoted above that permission had already been granted under the earlier permission for the new entrance and there was thus no requirement for a new application to be made for this entrance.

17. What was applied for under 07/1080 was "access" off the R759 and that is what was granted - not a new entrance onto the R759 because there was no requirement for such permission, same having already been granted a year earlier. I am fortified further in that view by the fact that permission 06/5174 contained explicit conditions, to which I have referred above, referable to the construction of the entrance whereas such or similar conditions are entirely absent from 07/1080. Further support for this conclusion is to be found in the contents of the respective public site notices posted by Mr. Beattie on the lands. The 2006 notice refers to a "new entrance to site" whereas the 2007 notice refers to "all with access from the R759 road".

18. The mere fact that the plans accompanying application 07/1080 showed the new entrance on the R759 cannot without more be taken as indicating that such permission was being applied for because as noted above, the plans also showed the dwelling house for which permission had similarly been granted on foot of 06/5174.

19. Even if it were not clearly the case that 06/5174 grants permission for the new entrance, the best that can be said from the Council's point of view is that there may be an element of ambiguity as between the meaning and intent of 06/5174 and 07/1080 vis-a-vis the new entrance. In an application for a s. 160 injunction, as in any other injunction application, the onus rests upon the moving party to establish, on the balance of probabilities, that unauthorised development has taken, or is taking, place. As that proposition, in the context of condition 13 at any rate, hangs on establishing that the new entrance is permitted under 07/1080 and not 06/5174, the Council must, in my opinion, be viewed as having failed to discharge that onus.

20. It must equally follow that the Council have failed to establish that there has been a breach of condition 13 because there is no requirement to comply with it unless and until the entrance onto the N81 is closed and the new entrance is brought into use, an event which cannot occur by virtue of permission 06/5174 being now spent. I think the Council's argument that the 07/1080 permission granted permission for the new entrance must also be viewed in the light of the fact that if it did, it was not applied for and this would prima facie render it ultra vires the Council. Since the permission must be assumed to have been granted intra vires , this is a further reason for concluding that the later permission did not grant the new entrance.

21. I turn now to the remaining conditions, apart from condition 13, of which complaint is made by the Council. Determining to what, if any, extent these should now be given effect , I must have regard to the well settled principles to be applied in s. 160 proceedings, usefully summarised by Barrett J. in St. Margaret's Concerned Residents Group & ors v. Dublin Airport Authority PLC [2017] IEHC 694 (at para. 86):- 

"It is a well-established principle of Irish planning law that the courts will disregard immaterial deviations from a planning permission, or trivial or technical breaches of same. ( Sweetman, (SC) ) [ Sweetman v. Shell E & P Ireland Limited [2016] IESC 2]). The question of the nature of any breach of planning permission is relevant on two levels. First, from a general perspective a breach may be sufficiently immaterial or trivial as not to amount to unauthorised development. Second, in the specific context of the discretionary nature of s.160 proceedings, even if there has been unauthorised development, the trivial or immaterial nature of any breach may be such that it is not appropriate to grant relief. In the court's view, the facts at issue in the within proceedings come into this second category."

22. As already discussed, although the Council did not abandon alleged breaches of conditions other than condition 13, the latter was very much the focus of this case. There was no realistic suggestion of a failure to otherwise carry out the development in accordance with the permission and in particular, in the context of the tree planting requirements, it appears to be conceded by the Council that Mr. Beattie has planted trees very extensively and far in excess of what was required of him under the terms of the permission. To that extent, insofar as conditions 2 and 3 are concerned, which require security deposits, I am satisfied no ongoing necessity for the lodging of such deposits has been established by the Council and any failure in that regard has now to be viewed as trivial or merely technical. The same considerations apply to conditions 15, 16 and 17. Condition 14 relates to sight lines for the new entrance but in view of the conclusions I have arrived at, this is no longer material.

23. For these reasons therefore, I propose to allow Mr. Beattie's appeal herein and dismiss the Council's application. 

Permanent public link to the judgement available here.

Shed built by couple beside their home was unauthorised, High Court rules

A couple who built a shed/workshop next to their Wicklow house without planning permission have failed in a High Court appeal challenging enforcement proceedings against them. Liam Lee and Jean Tompkins failed to establish the two-storey structure was built more than seven years before the local council brought proceedings against them. No action can be taken, by law, if proceedings are not brought within seven years from the start of the development. Mr Justice Seamus Noonan rejected an appeal by the couple over the dormer-type structure which is independent of their house at Kilmurry Lower, Baltinglass. Mr Lee obtained planning permission from Wicklow Co Council for a two storey dwelling on the land in 2003 and built a house there.

Read the full article @ The Irish Independent

The High Court judgement is provided below:

Wicklow County Council v LIAM LEE AND JEAN TOMPKINS [2019] IEHC 19

JUDGMENT of Mr. Justice Noonan delivered on the 15th day of January, 2019

1. This appeal is brought by the respondents from an order of the Circuit Court (Her Honour Judge Reynolds) made on the 30th June, 2015 pursuant to s.160 of the Planning and Development Act, 2000, as amended, whereby the respondents were enjoined to cease an unauthorised development on their property at Kilmurry Lower Baltinglass, County Wicklow being the property comprised in Folio 25510F County Wicklow. In the original motion before the Circuit Court, the applicant ("the Council") sought a wide range of reliefs which were granted but the within appeal is concerned only with that part of the order that related to an unauthorised dormer structure/dwelling, to which I will refer as "the shed/workshop", and the construction of an unauthorised wall, referred to as "the screen wall".

2. On the 16th May, 2002, the Council granted planning permission to the first respondent to build a single storey dwelling on the lands (reference 02/6132). On the 24th April, 2003, the Council issued a further permission to the first respondent for a change of house type from single storey to two storey (reference 02/7168). The dwelling house and associated works were duly completed on the land.

3. In or about 2013, it came to the Council's attention that a large two storey dormer structure, independent of the house, had also been constructed on the lands without permission. Further a large brick wall was constructed also without permission. It is not in dispute that both of these structures, the shed/workshop and the screen wall, are unauthorised.

4. The dispute in this case centres on a single issue, namely whether the Council are precluded from bringing the within proceedings by virtue of lapse of time. In that regard the relevant statutory provision is to be found in s.160 subs. (6) of the 2000 Act which provides as follows:
"(6) (a) An application to the High Court or Circuit Court for an order under this section shall not be made—
(i) in respect of a development where no permission has been granted, after the expiration of a period of 7 years from the date of the commencement of the development, or

(ii) in respect of a development for which permission has been granted under Part III, after the expiration of a period of 7 years beginning on the expiration, as respects the permission authorising the development, of the appropriate period (within the meaning of section 40) or, as the case may be, of the appropriate period as extended under section 42 …"
5. It can be seen therefore that where the development is one for which no permission has been granted, a seven-year limitation period applies but in the case of a development for which permission has been granted, the period is seven years from the expiry of the permission, which itself has a lifespan of five years, giving a total limitation period of twelve years. The affidavits in support of the application were sworn by the Council's assistant planner, Lucy Roche which detail the planning history of the matter. The issues that arise in these proceedings were first brought to Ms. Roche's attention in or about February of 2013 when she reviewed the file and, on the 21st March, 2013, carried out an inspection of the property. Although she could not access the site, she was able to observe that an unauthorised large dormer structure was constructed to the east of the dwelling enclosed by a large brick wall.

6. Arising from Ms. Roche's inspection, a warning letter was sent by the Council to the respondents on the 9th April, 2013. This resulted in the Council being contacted by a Mr. John O'Hanlon on behalf of the respondents who indicated that he had been requested to deal with the matters raised in the warning letter. Nothing further was heard from Mr. O'Hanlon and accordingly a second warning letter was sent on the 10th July, 2013. A second inspection was carried out by Ms. Roche on the 1st October, 2013 which disclosed no change and accordingly on the next day, the 2nd October, 2013 an enforcement notice was served upon the respondents.

7. This again elicited no response and a third inspection was carried out by Ms. Roche on the 21st January, 2014 again disclosing no change. In apparent response to the enforcement notice, on the 15th April, 2014 the first respondent applied for retention permission to the Council in respect of, inter alia , the shed/workshop. The Council's solicitors sought an undertaking from the respondents that they would cease the unauthorised development by letter of the 24th April, 2014 to which no response was forthcoming. Accordingly, the within proceedings issued on the 14th May, 2014.

8. A further retention application was made by the first respondent seeking retention of the screen wall on the 9th October, 2014. A fourth inspection was carried out by Ms. Roche on the 15th October, 2014. On the 20th November, 2014, the Council refused permission for the screen wall and by further decision of the 21st January, 2015, refused retention of the shed/workshop.

9. Following the refusal of the two retention applications, the first respondent swore a replying affidavit in these proceedings on the 27th April, 2015, when he raised for the first time the limitation issue on the basis that since more than seven years had elapsed between the commencement of the unauthorised development and the commencement of the proceedings, the Council could not pursue the matter further. Following the making of the order by the Circuit Court in April 2015, the respondents served notice of appeal and on the 30th June, 2015, again applied for retention permission of the existing dwelling house, garage and outbuildings as constructed. On the 3rd July, 2015, the Council granted permission for the dwelling house but refused retention of the garage and outbuildings.

10. In his first replying affidavit, the first respondent accepts that the shed/workshop and screen wall were built without planning permission. He claims however that the development commenced more than seven years prior to the institution of these proceedings. The first respondent's evidence in this regard is that the construction of the shed/workshop commenced on or about the 22nd April, 2004 and the foundations of the screen wall were constructed on the 3rd February, 2005. He refers to certain invoices for concrete he claims was purchased for this purpose. The first respondent's evidence in that regard is supported by an affidavit of Donougha O'Brien, a groundworks contractor who avers that in April 2004, he was engaged to excavate and lay foundations for the shed/workshop and screen wall, inter alia .

11. He further says that as a result of consulting his diary, he is satisfied that on the 20th April, 2004, he excavated foundations for the entrance wall and boiler house, neither of which are relevant to these proceedings. He goes on to say that on the 22nd April, 2004, he returned in order to pour the concrete floor of the shed/workshop. He does not appear to make any explicit reference to pouring the foundations for the screen wall.

12. The respondents rely on a further affidavit of Gerry Nolan, a block layer, who avers that he attended in early 2005 at the property to build the screen wall, the foundations of which were already completed. He does not appear to indicate what actual works were carried out by him or to what extent the construction of the screen wall was undertaken. In fact, this is confirmed by the first respondent's second affidavit. In response to an averment by Ms. Roche that an aerial photograph taken in 2005 does not appear to detail the garage or screen wall, the first respondent says the following:

"For the avoidance of any doubt, the respondents have never claimed that these structures were completed before 2005. We maintain that these developments were, however, commenced in 2004 and 2005 respectively. I worked on those structures on a piecemeal basis after the development commenced: I purchased materials when I could afford them and I did the work myself. As a result, although the development commenced in 2004 and 2005, the shed (which was the last structure to be finished) was not actually completed until late 2010 or early 2011."

13. A number of Google Earth and Google Street View images are exhibited in the affidavits of Ms. Roche. A street view image from March 2009 clearly shows that while the screen wall is present, the shed/workshop is not, certainly above the level of the wall at any rate. The Google Earth image from 2010 appears to show items such as vehicles and/or containers in the area now occupied by the shed/workshop. Google Earth and Street View images from 2011 clearly however show the presence of the shed/workshop which appears to be fully or substantially completed. This appears to be confirmed by the first respondent in his affidavit above quoted where he says that the shed/workshop was not actually completed until late 2010 or early 2011.

14. It is notable however that there is no evidence before the court as to what precise works were done by the respondents or when they were done, either in terms of the shed/workshop or the screen wall. All that the evidence appears to establish is that the concrete for the workshop floor was poured in April 2004 and foundations for the wall possibly in 2005. It is thus not known when the screen wall that is to be seen in the 2009 photographs was actually constructed to the extent seen in those photographs, nor is there evidence of what degree of construction of the shed/workshop actually occurred before it was substantially or totally completed in 2010/2011.

15. The only persons who can establish these facts are the respondents who have chosen not to do so. In the case of the screen wall for example, the building of such wall, up to a certain height at any rate, may well have constituted exempted development under the planning code. It is only when the permitted height was exceeded, as it was here, that this development became an unauthorised development. There is no evidence before the court as to when this occurred.

16. I am satisfied that the authorities establish that where a time bar defence is relied upon by a developer in answer to an application under s.160, the onus rests upon the developer to prove when the development commenced - see Wicklow County Council v. Fortune [2012] IEHC 406. In tandem with that issue lies the question of when a development can be said to have commenced. In that regard, it is important to bear in mind that the evidence in this case, in relation to the shed/workshop at any rate, establishes that while some very preliminary work in the nature of concrete pouring may well have been undertaken in 2004, nothing of substance appears to have happened subsequently for some six years. In Dublin County Council South v. Balfe Ltd [1995] WJSC-HC 4391, this court (Costello J.) considered when a development had commenced for the purposes of an application under s.27 of the Local Government (Planning and Development) Act, 1976, the predecessor of s.160. In that case, as here, there had been a substantial lacuna between what the developer claimed was the commencement of the unauthorised user and its resumption. In that regard, the court noted (at p.4408):
"In my opinion when a use has been abandoned and then recommenced nearly four years later an occupant cannot rely on an earlier use to support a claim that the limitation period in the section should run from the earlier date and not from the date of recommencement. If construed in the way urged by the respondents it would be a simple matter to drive a coach-and-four through the section by discontinuing an unauthorised use after a warning notice had been served and then re-commence it again after several years when a limitation period based on the discontinued unauthorized user had expired, and I consider that the section cannot be so construed."
17. Although that case concerned user as distinct from construction, it seems to me that this logic must be equally applicable to the facts of the present case. It would for example clearly be an absurd construction of the section to suggest that because one block is laid and left in situ for ten years before a building is constructed that the development commenced with the laying of the block. In Kildare County Council v. Goode [1999] 2 IR 495, the Supreme Court had to consider whether quarrying activities carried on by the respondents on their lands required planning permission. They contended that the extraction of sand and gravel was a "works development" as defined by the Local Government (Planning and Development) Act, 1963.

18. Barron J., with whom the other members of the court agreed, found that the expression "works" was intended to refer to activity which was "carried out once and for all and as a means to an end rather than an end in itself. It was intended to apply to temporary activity involving the erection of structures or changes to or removal of existing structures" (at p. 502).

19. In my view, the concept of "commencement of the development" involves a reasonably continuous, but temporary, unitary process leading to a completion of the development in issue. Something which is done sporadically and piecemeal with intervening significant periods of inactivity and abandonment, cannot in my opinion amount to a "commencement of the development" within the meaning of s.160. Seen in that light, it seems probable that the development here which led to the completion or substantial completion of the shed/workshop can only be viewed as having commenced in or around 2010. However, it is not for the Council to prove that.

20. In relation to the shed/workshop, I am therefore satisfied that the respondents have not discharged the onus of establishing that the commencement of the development happened more than seven years prior to the institution of these proceedings.

21. With regard to the screen wall, as I have already indicated there is no evidence before the court as to when this was constructed, to its present height at any rate. As noted above, the development would only have become unauthorised once a certain height was reached and the respondents have chosen to put no evidence before the court of when this occurred. The pouring of the foundations, without more, cannot therefore amount to the commencement of the development, which of course can only refer to the unauthorised development.

22. For these reasons therefore, the respondents have failed to discharge the onus which rests upon them of establishing that the unauthorised development in issue commenced more than seven years prior to the institution of these proceedings. It is accordingly unnecessary for me to consider whether or not the longer twelve-year time limit would in any event be applicable to this case. I therefore propose to dismiss this appeal and affirm the order of the Circuit Court.

Public link to the judgement available here.

The Irish Times view on the housing crisis: how to fix a broken system

When housing affordability becomes a problem, low and middle-income families are excluded from the market. The obvious answer is to build more homes and force down prices. Because of political pressure and a short election cycle, however, governments reach for subsidies to bridge that price gap, thereby sustaining a dysfunctional market. Aside from delays caused by bureaucracy, available funding and local objections, the central impediment to a properly functioning market is the price of land. House prices and rents dropped precipitously following the financial crash, but prime development land retained much of its value as owners hunkered down and waited out the economic storm. Today, site prices in Dublin exceed Celtic Tiger levels and the Government is being forced to provide State-owned land at minimum prices to cater for demand. In an attempt to bring privately hoarded land into use, a vacant site charge of 3 per cent will rise to 7 per cent next year.
Read the full article @ The Irish Times

Wednesday 6 February 2019

'Better planning: reforms for sustainable development' by IBEC

I have read IBEC’s recent report: ‘Better planning: reforms for sustainable development’. Any substantive contribution to planning debate in Ireland is to be welcomed. But what does it say? The Report welcomes the appointment of a Planning Regulator and points to areas that it hopes the Office will address in streamlining plan making and the co-ordination of resources with the planning system.

While the report’s comments are worth a read, it must reasonably be noted that the process leading up to the recent appointment of a Planning Regulator took years of work by many bodies, including the Irish Planning Institute. Input from all relevant bodies was sought during the process.

For planners, the Regulator represents one of the most significant changes that has ever been made to the Irish planning system. The Regulator was only appointed in late December 2018 and it is, in my view, a bit early to start judging its performance or likely performance (proposing to change its functions before it has used its existing powers seems premature). It needs to find its feet so to speak. Only then can it start to address many of the areas of change emphasised by IBEC.

There is no doubt that areas of Irish planning require change and that there is impatience around the pace of that change – the Regulator will help in some of these areas (e.g. transparency, independence of decision making, etc.), I am not convinced though that it will be the Regulator, and not the Government through the relevant Department, that makes the decisions on some of the changes proposed by IBEC.

The IBEC report also addresses other areas including:

1. The need to speed up the CPO process. While this is certainly an area that needs attention, it can’t be at the expense of undermining the constitutional right for fair hearing. In my experience, it is the arbitration process that takes a long time and it is this that needs to be reviewed.

2. The need for a CPD programme for local authority planners. In my experience, local authority planners are well qualified and receive support to add to their qualifications and to attend CPO events.  What is actually needed is a move to register all qualified planners and to protect the title of 'Town Planner' in the same way that ‘Architect’ is now a protected term. It should not be the case that other professionals can mislead clients into thinking they are qualified planners when they are not.

3. The need for more local authority planners. I agree that more planners are needed; however, we are now in a position given the huge back log of graduates awaiting planning employment, to choose the most qualified. How can we do this? In my view there needs to be some distinction between planners who hold undergraduate degrees and those who hold a Masters degree (or more) in planning. The reason why wages for planners are so high in local authorities is that planning was once considered a highly technical discipline that required and recruited those with Masters degrees from primarily UCD and Queen’s Belfast. With the introduction of undergraduate degrees in planning (in DIT, Cork, etc.), graduates with a lower level of qualification are now – and have been for some years - directly competing for entry level planning jobs (Graduate Planner. Assistant Planner, etc.), with those who have higher level qualifications. And, they have been and are getting the jobs – I do not understand this as it completely dismisses the additional year or two years’ work undertaken to get the Master’s Degree.

In case you think this is unfair, ask yourself, if you were going for an operation, would you like to be worked on by the person with the most advanced degree or to take pot luck on a person who may be very good notwithstanding he/she left third level education with only a degree?

Under the Irish university system, students qualify with Ordinary Bachelors degrees (NFQ Level 7) or Honours Bachelors degrees (NFQ Level 8). Universities also offer Masters (NFQ Level 9) and Doctoral (NFQ Level 10) postgraduate degrees. It should reasonably be the case that those with NFQ Level 9 qualifications (or even Level 10) should be recruited prior to those with NFQ7 or 8. For me, an NFQ Level 9 qualification should see a planner shortlisted for interview, in every case, above someone with only an NFQ Level 7 or 8 qualification. How can any other position be justified? If local authorities continue to hire NFQ Level 7 graduates over Level 8s and 9s in direct head to head competitions, then some explanation is needed as to why local authority planners are paid so much. The high wages were for advanced qualifications. As with other disciplines, we should hire those who have reached the highest education level – not those who perform best at interviews (the current interviewing style clearly suits some and not others).

I am also of the view that it should not be possible for a planner recruited with a Level 7 or 8 qualification to be promoted past ‘Executive Planner’ without at least a Level 9 qualification. This would justify the very high wages paid to Senior Executive Planners and above. It would also encourage those entering local authority planning with a basic degree to work towards a Level 9 qualification which itself would be excellent CPD. 

Without a qualification framework for planners to work within that positively supports their career development, then what is the point in planners seeking advanced planning and related qualifications? Obtaining an advanced degree or diploma should be a career enhancer, not a waste of time.

I get the impression from the IBEC report that they want to move away from pot luck planning towards streamlined planning. Getting the most qualified planners in the positions most requiring those qualifications is badly needed.

Read the full IBEC report here.

Ireland 2040: A tide to lift all, but Planning must come first

Grand plans for Ireland have been written on a cyclical basis over the decades. So far, we have failed to deliver. History would suggest that to be successful we need to take politics out of development. Planning, and plan making, is complex and everyone has a view. In practice, it is a balance between what individuals and communities want on one hand, usually in their own interest, and the evidence-based assessment by professionals of what is in the common good on the other. Grand plans for Ireland have been written on a cyclical basis over the decades. So far, we have failed to deliver. History would suggest that to be successful we need to take politics out of development. We need an evidence and intelligence-based approach to investment decisions that protects development from the excesses of ‘representation’. When Ireland 2040 was announced, the Irish Planning Institute warned of the danger that history could repeat itself. We must guard against it becoming a catch-all fund for development led by politics rather than a blueprint for development based on good planning. The protection against falling into that trap is to have a nationally coordinated professional framework of administration for planning that feeds into and influences decision-making on public investment. That framework will enable, support, coordinate and control consistent evidence-based development. It will marry national and local interests and help underpin the case of provable development needs by aligning professional development experts, public administration and capital to work together in delivering solutions.
Read the full article @ The Business Post

Ireland’s planning regulator could change attitudes to planning

Ireland has created an independent Office of the Planning Regulator, and it could be the catalyst in a transformation of the way members of the public and politicians understand planning, says Aidan Culhane. It is profoundly to be hoped that the least-commented-upon functions of Ireland’s new independent Office of the Planning Regulator will become its most important – research and education. The Planning and Development Act 2018 empowers the regulator “to undertake research and conduct programmes of education in respect of proper planning and sustainable development”. This could be transformative in developing an understanding of planning principles among the public, and advancing knowledge across the construction and development sector. Imagine what could be achieved with a well-resourced office charged with promoting planning across society. Imagine what a cutting-edge research programme could do in terms of developing the planning response to climate change, carbon-neutral cities, new housing and settlement patterns, smart cities and how we will live, work, and play.

Read the full article @

Cork officials call for planning board revamp

Cork county councillors are to urge Minister Eoghan Murphy to put more professional planners on the board of the highest planning authority in the country. It comes amid concern that many recommendations by An Bord Pleanála’s inspectors are being overruled by its existing board. As they debated the motion by Independent councillor Marcia D’Alton, the majority of councillors were wearing ‘No Incinerator’ t-shirts, which are being sold to raise funds for a judicial review being taken by CHASE (Cork Harbour for a Safe Environment) against An Bord Pleanála’s decision to grant Indaver planning permission for an incinerator in the harbour. Despite the inspector’s report recommending Indaver be refused planning permission, An Bord Pleanála gave the company the green light to build the incinerator in Ringaskiddy. Ms D’Alton, an environmental engineer, pointed out that just three members of the 10-person board are planners.

Read the full article @ The Irish Examiner

Waterford residents lodge appeal against planning permission for solar farm

Residents in a west Waterford townland have lodged an appeal to Bord Pleanála against Waterford Council’s decision to grant planning for a solar farm on a 74-acre rural site. The company Engie Developments Ireland Ltd, a subsidiary of global energy giant Engie, has earmarked a site at Poulboutia, seven kilometres north of Cappoquin, to construct power-generating units mounted on metal frames, inclusive of an electrical control building and up to eight inverter units. Engie is reportedly the world’s largest independent power producer, with a payroll of 150,000 across 70 countries. It boasted a €66.6bn turnover in 2017.
Read the full article @ The Irish Examiner

Harry Crosbie's luxury Hanover Quay hotel plan refused permission over waterfront access

Dublin City Council has refused planning permission to businessman, Harry Crosbie for a luxury boutique hotel for Hanover Quay in the city over a row concerning the public gaining free access to the waterfront at his planned hotel. Mr Crosbie was planning to convert his own home at 9 Hanover Quay on Grand Canal Dock into a four-star 19 bedroom hotel with guest bars and dining areas along the floor-length windows on the waterfront. The hotel - which faced local opposition - was to complement the planned U2 visitor centre for the adjacent site and that project received planning permission last week. However, the city council has turned down planning permission after Mr Crosbie refused to countenance the public having free access to the waterfront at the planned hotel.
Read the full article @ The Irish Examiner

Monday 4 February 2019

Friends of the Irish Environment challenges Shannon gas plant decision

The decision to extend planning permission for a €500 million liquefied natural gas (LNG) plant beside the Shannon estuary should have not have proceeded without a separate evaluation of its climate change impact, the High Court has been told. In judicial review proceedings brought by Friends of the Irish Environment (FIE), it is claimed permission given by An Bord Pleanála to Shannon LNG should not have been renewed because of a subsequent failure to comply with Irish and EU law, and a delay in reaching its decision. The plant, located between Tarbert and Ballylongford in Co Kerry, was originally granted permission by An Bord Pleanála in 2008, and given a five-year extension last year.
Read the full article @ The Irish Times

College Green traffic free plaza to be trialled in July and August

The College Green traffic free plaza, rejected by An Bord Pleanála last year, will be put in place this summer on a trial basis, Dublin City Council has said. The council has confirmed it intends to lodge a fresh application for the permanent pedestrian and cycle plaza to the board by the middle of this year, but will close College Green to traffic between 7am and 7pm on Sundays in July and August to test out the popularity of the plaza and iron out any logistical difficulties. The board last November rejected the €10 million plaza scheme due to concerns about the “significantly negative impacts” it would have on bus transport, and traffic in the city.
Read the full article @ The Irish Times